Criminal Cases Pending Against 44 % of Lok Sabha Members, 31% of Rajya Sabha Members As Of July 2022: Amicus Curiae Informs Supreme Court

Senior Advocate Vijay Hansaria, the amicus curiae appointed by the Supreme Court in the matter relating to criminal cases against MPs/MLAs has pointed out that as of July 2022, 44% of Lok Sabha members and 31% of Rajya Sabha members have criminal cases pending against them.  He stated this in the 17th report submitted in the case relying on a study done by the Association for Democratic Reforms.

The Supreme Court has been monitoring expeditious disposal of criminal cases against MPs and MLAs since 2016 in a PIL filed by Ashwini Kumar Upadhyay.

In his 17th report dated 14.11.2022, the Amicus had pointed out that 5,097 cases are pending against MPs/MLAs out of which more than 40% i.e. 2,122 cases are pending for more than 5 years.

As per report of the Association for Democratic Rights, 236 out of 542 Lok Sabha members (44%), 71 out of 226 Rajya Sabha members (31%) and 1723 of 3991 State Legislators (43%) have criminal cases against them as of July 2022, the Amicus had stated in his latest report.

The Amicus had had sought for various directions in his 17th report including expeditious trial of cases using technology for examination of witnesses and appearance of the accused persons. The Amicus in the said report had suggested that in case the accused delays the trial, his/her bail should be cancelled; and in case prosecution does not cooperate, a report may be sent to the Chief Secretary of the State. He had also suggested that cases involving sitting legislators be given priority over former legislators.

The Supreme Court had subsequently directed all the High Courts to file response to the submissions made by the Amicus in his 17th report. The amicus, submitted in his 18th report dated 03.05.2023 that the High Courts in their response have substantially agreed with the submissions of Amicus in 17th report for expeditious trial of cases.

On 10.08.2021, the Apex Court had directed that the Presiding officers of the Special Courts involving prosecution of MPs or MLAs, shall not be transferred except with the leave of the Apex Court. However, most recently on 11.07.2023, the Apex Court modified this order on the following terms:

(I) The permission of this Court shall not be required for transfer of Presiding officers of Special Courts dealing with cases pertaining to MPs/MLAs by the High Courts subject to due observance of the following conditions:

(i) The High Court concerned may transfer the Presiding officers of Special Courts - MPs/MLAs after obtaining the approval of the Chief Justice of the High Court on the administrative side;

(ii) While granting permission, the Chief Justice shall ensure that some other judicial officer is posted in the vacancy which would be caused by the transfer so that the Special Court in charge of cases of MPs/MLAs is not kept vacant; and

(iii) The transfer shall be permitted subject to the condition that there is no case pending for final judgment after the conclusion of the arguments in the trial.

In his 18th Report, the amicus has also sought for a hearing date to be fixed to consider the constitutional validity of Section 8 of the Representation of the People’s Act, 1951 which limits the period of disqualification of a person to contest an election as an MP/MLA only for a period of six years from the date of the release upon conviction, even for a heinous offence.

The Supreme Court has been monitoring expeditious disposal of criminal cases against MPs and MLAs since 2016. Initially 12 Special Courts were constituted; and subsequently Special Courts have been established in almost all the districts, where the criminal cases are pending.

In its order dated 08.12.2018, the Supreme Court had directed that the Special Courts shall “fix a calendar for each case to be taken up on day to day basis.” By another order dated 16.09.2020, the Supreme Court had directed that “Chief Justices of the High Court shall also designate a Special Bench, comprising themselves and their designate, in order to monitor the progress of these trials.” In another subsequent order dated 04.11.2020, the Top Court directed that “keeping in mind public interest involved in the matter and in order to prevent undue delay, we direct that no unnecessary adjournments be granted in these matters.”

Case Title: Ashwini Kumar Upadhyay vs. Union of India, Writ Petition (C) No. 699 of 2016